Francis H. (Francis Hermann) Bohlen.

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a warehouseman sold wheat for one having no title thereto and endorsed over
the wheat tickets collected the proceeds and applied them to the payment of
a debt owed bv his principal to him.

So in JJ'aikcr v. First National Bank. 43 Ore. 102 (1903), it was held that
a bank in transferring a bill of lading and collecting the proceeds merely as a
collecting agent, was not sjuiltv of conversion; and see Lcuthold v. Fairchild,
35 Minn. 99 (1886) : and in Roach v. Turk, 9 Heisk. 708 (Tenn. 1872), Far-
pason V. Hall. 159 S. W. 221 (Tenn., 1013^ ; and Abcrnathy v. Wheeler. 13
Ky. L. 730 (1890), it is held that a factor, commission agent or_ warehouse-
man is not guilty of conversion, in selling and delivering goods in ignorance
of the invalidity of his principal's title.

9— Bohlen's Cases, Vol. I.



I30



VARNEY V. CURTIS.



Great Northern joint bonds with forged indorsements. The last
of January, 1904, Symonds directed the defendants to transfer this
account to Colton & Co. Pursuant to that direction the defendants,
on February i, 1904, dehvered to Cohon & Co. all the stocks and
bonds which they were then carrying on margin for Symonds, and
the bonds held by them as security for that margin account (includ-
ing these four bonds), on receiving from Colton & Co. $10,515.54,
the amount due to them from Symonds. In this connection the judge
made the following finding and ruling: "The defendants in making
delivery to E. S. Colton & Co. knew that the bonds previously held
by them as collateral would be held by Colton &_Co. as collateral,
and intended that result. The court, in so far as it is a question of
fact, finds as a fact, and in so far as it is a question of law, rules as
matter of law, that such a delivery by defendants was more than
a mere transfer of physical possession of the bonds to Colton & Co.,
by order of Symonds. It was a transfer of possession of the bonds
which they held as collateral with the intention that the transferrees
should also hold them as collateral. The court also finds as a fact
that the defendants were not obliged to make such delivery in the
performance of any duty which they owed to Symonds by contract
as bailees or pledgees under him. They did it voluntarily in pur-
suance of his instructions and as a means of obtaining payment of
the debt he owed to them. They had no knowledge or notice that
the plaintiff was the true owner of the bonds, but the court rules that
the act of delivery to Colton & Co. with the intention above stated
was an exercise of ownership, in exclusion of the rights of the true
owner, an act of dominion, and a conversion."^

The twenty-first and twenty-second rulings asked for are based
on Loring v. Mulcahy, 3 Allen 575, and Leonard v. Tidd, 3 Mete. 6,
and the contention is that this case comes within these decisions.^

It is settled that where a bailee receives on deposit goods from
one in possession but without title to them, and afterwards restores



^ Only so much of the facts in the opinion of the court as deals with the
conversion of these bonds is given. The residue of their opinion is omitted,
in which the court held that the trial judge was justified in holding that, by
reason of the dealings of the parties immediately before the bonds were re-
ceived, the defendant took these bonds as collateral with notice of the in-
validity of Symonds' title thereto, and this constituted a conversion, and also
that the mere taking as collateral in good faith and without notice these four
Northern Pacific-Great Northern bonds was not of itself a conversion.

^The twentv-first and twenty-second rulings asked for were in these
words: "(21) The delivery of the bonds to Colton & Co. by the defendants
in accordance with the directions of the plaintiff's agent, George E. Symondi,
was equivalent to a return of the said bonds to George E. Symonds and there-
fore constructively a return to the plaintiff and for such bonds the plaintiff'
is not entitled to recover, it being agreed that the bonds had not depreciated
during the period that the defendants held the same. (22) The delivery of
the bonds to Berry & Co. by the defendants in accordance with the directions
of the plaintiff's agent, George E. Symonds, was equivalent to a return of the
said bonds to George E. Symonds and therefore constructively a return to the
plaintiff and for such bonds the plaintiff is not entitled to recover. It being
agreed that the bonds had not depreciated during the period that the defend-
ants held the same."



VARNEY V. CURTIS. I3I

them to the possession of the bailor in ignorance of the rights of the
true owner, he is not guilty of a conversion. Loring v. Mulcahy, 3
Allen 575 ; Hill v. Hayes, 38 Conn. 532 ; Steele v. Marsicano, 102
Cal. 666; Frome v. Dennis, 45 N. J. Law 515 ; Nelson v. Iverson, 17
Ala. 216. For other cases where the temporary use of the property
of another made by a defendant acting in good faith under a mistake
of fact has been held or said not to be a conversion, see Strickland
V. Barrett, 20 Pick. 415; Wellington v. IVentworth, 8 Mete. 548;
Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514; Shea v.
Milford, 145 Mass. 525, 14 N. E. 769 ; Gurley v. Armstead, 148
Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 Am, St. 555.

It is pointed out in Pollock on Torts, 374, in connection JA^ith
this rule, that a bailee is estopped under those circurnstances to
deny the title of the bailor. That means in returning the goods to
the bailor the bailee does no more than perform the duty he owes
to the bailor. For that reason he cannot be guilty of a conversion
for doing that.

In Leonard v. Tidd, 3 Aletc. 6, this principle was applied in a
case where the defendants acting in good faith received as security
for a debt due to them from the pledgor a gun, the property of the
plaintiff which was in the possession of the pledgor, and returned
the property pledged to the wrongful pledgor upon payment of the
debt due them from him. The same reasoning was adopted in
Loring v. Mulcahy, ubi supra. That is to say, in such a case, so far
as the true owner is concerned the pledgee is in possession under
one to whom the true owner had given possession, and by returning
the pledged property to the wrongful pledgor the pledgee does
nothing more than perform the duty he owes the wrongful pledgor
under the circumstances in effecting a restoration of the original
status in quo, to wit, in putting back the property into the possession
of the wrongful pledgor where originally it had been put by the true
owner.

But in the case at bar the plaintiff's bonds, which the defendants
received in good faith from Symonds in whose possession the plain-
tiff had put them, were not returned to Symonds. On the contrary
they were delivered by Symonds' direction to persons who to the
defendant's knowledge were lending money to Symonds on the
security of these bonds. That is to say, the defendants in place
of restoring the bonds to Symonds delivered them to a third person
in obedience to a subsequent act on the part of Symonds which was
an act of ownership and not of mere possession.

The question whether under those circumstances the pledgor is
guilty of a conversion has not arisen in this commonwealth. In
Leonard v. Tidd, 3 Mete. 6, the gun was not delivered by the pledgee
to the purchaser from the wrongful pledgor. In that case the
wrongful pledgor "took the gun from a room in the defendant's
house and delivered it to Pratt," the purchaser from the wrongful
pledgor. See 3 Mete, at page 7. That is to say, the sale in that case
was made by the wrongful pledgor and the gun was taken from the
pledgee by the wrongful pledgor and delivered by him to the pur-



T^2 HYDE Z'. NOBLE.

chaser. All that the defendant did was to take the proceeds of the
tortious sale. That is not a conversion. See Policy v. Lenox Iron
Works, 2 Allen (]\Iass.) 182. In Parker v. Lombard, 100 Mass. 405,
there was no delivery by the bailee in obedience to a subsequent act
of dominion exercised by the bailor. In that case the bailee delivered
the goods to the person who was entitled to receive them under the
instructions given him by the bailor when the original bailment was
made. In other words, that was a case where the bailee delivered
to the person in whose behalf the bailee was told the bailment was
made when it was made.

Blackburn, J., in answering the question proposed to the judges
by the Hou^e of Lords in HolUns v. Fowler, L. R. 7 H. L. 757, 767,
gave it as his opinion that if the bailee in such a case "could have
been fixed with knowledge that more was done than merely changing
the custody, and knew that the company's servants (i. e. servants of
the bailee) were transferring the property from one who had it
in fact to another who was going to use it up, the question would
be nearly the same as that in the present case." In "the present
case" Blackburn, J.'s, answer to the question put to the judges was
that the defendant was guilty of a conversion. The decision in
Hudmon Brothers v. Du Bosc, 85 Ala. 446, 5 So. 162, 2 L. R. A.
475. goss farther. In Hudmon Brothers v. Du Bose it was held
that a warehouseman who delivered cotton stored with him not to
the bailor but to the holder of the storage receipt issued to the
bailor when the cotton was put in storage, was guilty of a conver-
sion without its being shown that knowledge had been brought home
to the warehouseman that more was being done than "merely chang-
ing the custody." Somerville, J., in delivering the opinion in that
case, said that what may be for convenience called the rule of
Leonard v. Tidd "does not include a restoration of the bailor's
dominion by an act, the essential nature of which is in defiance of the
crue owner's title, or the probable consequence of which will be to
put the property beyond his reach."



Exceptions overruled.



/



(b) Purchase and taking possession thereunder.



HYDE V. NOBLE ET AL.
Supreme Court of Judicature of New Hampshire, 1843. 13 A''. H. 494.

Trover for certain boards, planks and shingles alleged to have
been converted by the defendants in January, 1840.

In November, 1839, the plaintiff and others were owners of a
quantity of lumber at Hallowell and Gardiner in Maine, which was
manufactured there at mills hired by the plaintiff, who had posses-
sion and full control of the mills and the lumber for himself and the
othe^ owners.

In that month the plaintiff contracted with one Kenniston,



HYDE V. NOBLE.



133



master of the schooner "Prospect," to take a cargo of him])cr from
llallowcll and Gardiner to Weymouth, ]\Iass., and caused the lum-
ber to be put on board.

In the course of the voyaj^e the vessel put into Portsmouth, on
account of a severe storm which caused her to leak badly. In order
to lighten the ship, part of the lumber was taken out at Portsmouth,
where the defendant bought some of the lumber of Kenniston.

The court submitted it to the jury upon other evidence in the
case whether Keimiston had authority from the plaintiff to sell the
lumber, and that he had no authority as master of the vessel to
sell any part of the cargo unless there was a necessity for doing
so for the purpose of making repairs, which appeared not to be the
case.

The court further instructed the jury, there being evidence that
a demand had been made upon Moses Noble, one of the defendants,
who had refused to deliver the timber, and who had admitted that
the other defendants were his partners, that the defendants having
purchased the lumber, the demand upon one of them, they being
partners, was sufficient. That the plaintiff, if he had not authorized
the sale, by reason of his ownership and possession as agent, was
entitled to recover the entire value of the lumber sold to the de-
fendants.^

Parker, C. J.- The plaintiff had a sufficient property in the
lumber to enable him to maintain trover, if the defendants are
liable. He was part owner of the lumber, and although others were
interested in it, yet it appears that he hired the mills at which it was
manufactured, had possession of them and of the lumber and had
the complete control of it. It is evident that he might have sold it,
being accountable to those interested, for the proceeds, and it seems
that he had shipped it for that purpose. He had, then, a general
property in part, and a special property in the residue, and the latter
alone is sufficient for the purpose of this action. Jones v. Sinclair,
2 N. H. 320; KnigJit v. Legh, 4 Bing. 489. The sale by Kenniston
terminated the bailment, and the plaintiff had the right of possession.
Sanborn v. Colman, 6 N. H. 14; Sargent v. Gilc, 8 N. H. 325.

The purchase by the defendants, taking possession as they
appear to have done, and holding it as their own property, was a
conversion. They received the possession from one who had no
authority to deliver it to them, under a sale which purported to vest
the property in them ; and they, by the purchase, undertook to con-
trol it as their own property. This was an assumption of power over
it, inconsistent with the rights of the plaintiff. Purchasing the prop-
erty from one who had no right to sell, and holding it to their own



^ The court also refused t^ instruct the jury that an action of assumpsit,
which had been brought against Kenniston for breach of his contract to trans-
port and deliver the property billed, in which the plaintiff had recovered dam-
age for the value of the property without satisfaction, constituted a bar to the
maintenance of the action.

"That p^irt of the opinion is omitted in which the court decides that the
judgment against Kenniston does not constitute a bar in the present action.



134



HYDE V. NOBLE.



use, is a direct act of conversion, without any demand and refusal.
Their possession was unlawful in its inception, by reason of the
want of authority in Kenniston to make the transfer. It is only
where a party obtains the possession lawfully, that it is necessary to
show a demand and refusal. Sanborn v. Colman, 6 N. H. 14 ; Galvin
V. Bacon, 2 Fairf . R. 28 ; Wilkinson v. King, 2 Camp. 335 ; Bristol
V. Burt, 7 Johns. R. 254; Bates v. Conkling, 10 Wend. (N. Y.)
389, Judgment on the verdict.^



^Accord: Hurst v. Gwennap, 2 Starkie 306 (1817) ; Cooper v. Willomatt,

I C. B. 672 (1845), purchase from bailee of goods for hire; McNeill v. Ar-
nold, 17 Ark. 154 (1856), "the very act of purchasing the slaves by McNeill
was at war with any title the appellees may have thereto and his subsequent
possession was adverse to their claim;" Donnell v. Thompson, 13 Ala. 440
(1848); Omaha, etc., Co. v. Tabor, 13 Colo. 41 (1889); Wright v. Skinner,
34 Fla. 453 (1894); Robinson v. McDonald, 2 Ga. 116 (1847); Sims
V. James, 62 Ga. 260 (1879) ; Clark v. Lewis, 35 111. 417 (1864) ; Smith v. Mc-
Lean, 24 Iowa 322 (1868) ; Harlan v. Brown, 4 Ind. Apo. 319 (1891), purchase
from one who had bought a note from the plaintiff when the latter was so
drunk as to be incapable of doing business; Shoemaker v. Simpson, 16 Kans.
43 (1876) ; Calvin v. Bacon, 11 Maine 28 (1833), bona Me purchase of goods
wrongfully sold by bailee for use; Riley v. Boston Water Power Co., 11 Cush.

II (Mass. 1853) ; Carter v. Kingman, 103 Mass. 517 (1870) ; Heberling v. Jag-
gar, 47 Minn. 70 (1891), purchase at executor's sale of goods of A seized un-
der execution against B; Trtido v. Anderson, 10 Mich. 357 (1862), semble,t\\Q.
actual decision being that the goods wrongfully sold by the plaintiff's servant
could be replevied in the hands of an innocent purchaser for value; Kramer v.
Faulkner, 9 Mo. App. 34 (1880) ; Dixon v. Caldwell, 15 Ohio St. 412 (1864),
purchase of land warrant transferred by forged endorsement; IVard v. Carson
River Co., 13 Nev. 44 (1878), purchase at invalid tax sale; West Jersey R.
Co. V. Trenton. Car Co., 32 N. J. L. 517 (1866) ; Black v. Jones, 64 N. Car. 318
(1870), purchase of a horse wrongfully taken by a quartermaster of the Fed-
eral Army and branded as United States property: Biddle v. Bayard, 13 Pa.
150 (1850), Auditor General's certificate lost by plaintiff and bought by de-
fendant as broker for another from a bona fide purchaser from the finder ;
Carey v. Bright, 58 Pa. 70 (1868) ; Rice v. Yocum, 155 Pa. 538 (1893), sew-
ing machine agent took, with wife's consent, in exchange for a new ma-
chine, a sev/ing machine belonging to her husband ; Rosum v. Hodges et al., 1
S. Dak. 308 (1890), purchase of grain sold by owner's servant without au-
thority: Deering v. Austin, 34 Vt. 330 (1861) ; Wilson, v. Rucker, 1 Call 500
(Va. 1799), lost military certificate purchased from finder; Eldred v. Oconto
Co.,2>?, Wis. 133 (1873).

One leasing chattels from a lessee of the owner is liable in trover.
Crocker v. Gullifer, 44 Maine 491 (1858) ; see also, St. Louis, V. & T. H. R.
Co. V. Kaulbrumer, 59 111. 152 (1871), where the railroad was held to have con-
verted fence posts taken by a contractor and built into the fence which he was
building for it and which it accepted and used, and Clark v. Wells, 45 Vt. 4
(1872), where the defendant made a conditional sale of a wagon to X, who
had a new running gear put in by the plaintiff, which was to remain his prop-
erty until paid for, X not paying for the wagon the defendant took possession
of it, this was held to be conversion.

in Rodgers v. Brittain, 39 Mich. 477 (1878). one who purchases at a sale
made in apparent conformity with a genuine chattel mortgage is held not to
he guilty of conversion, even after demand. While in Dean v. Cushman., 95
j\laine 454 (1901), it was held, that, though a sale by a mortgagor in posses-
sion puts an end to his right of possession and is a conversion of the chattel
m.ortgaged, the purchaser is not guilty of conversion in merely taking posses-
sion under the sale, until demand and refusal, since the sale conveyed at least
the right to redeem the goods.

A purchaser from a conditional vendee in possession is generally held to



BISHOP AXD JOURDAIN Z'. VISCOUNTESS MONTAGUE. I35

(c) Wrongful taking and asportation.



BISHOP AND JOURDAIN v. VISCOUNTESS MONTAGUE.

Court of Common Pleas, 1604. Croke Charles 50.

Trover. Upon a special verdict, the case was, that the defend-
ant's baiHff seized the beasts for an heriot, whereas there was not
any due, whereto the defendant agreed, and converted them ; where-
upon the action was brought. The sole question was, whether he
ought to have this action, or an action of trespass? For they all
agreed, that trespass lay by reason of her agreement.

Foster, for the plaintiff, argued that this action well lay; for it
is at his election whether he will admit himself to be out of posses-



be a conversion, Sims v. James, 62 Ca. 260; Clark v. Wells, 45 Vt. 4; Whip-
ple V. Gilpatrick, 19 Maine 427 (1841) ; Fisk v. Ezven, 46 N. H. 173 (1865) ;
contra: Vincent v. Cornell, 13 Pick. 294 (Mass. 1852), though if the pur-
chaser resells before demand, Carter v. Kingman, 103 Mass. 517 (1870), or
refuses to deliver upon demand, Hart v. Carpenter, 24 Conn. 427 (1856), he is
guilty of conversion. Where a stipulation that title be retained in the vendor,
though possession be given the vendee, is held to be invalid as to a purchaser
for value without notice, while the sale by the conditional vendee is a con-
version, the purchaser gets a good title and neither taking possession nor
subsequent sale or destructive use by him of the chattel is conversion : as to
the validity of such stipulations, see Harkness v. Russell, 118 U. S. 663 (1886).

Contra: Parker v. Middlebrook, 24 Conn. 207 (1855), where it was said
that a bona fide purchaser from one in actual and apparently lawful posses-
sion "can not be in a worse position than the finder of a chattel which has
been casually lost;" the plaintiff, who posed as a widow and using the name
of her first husband, conveyed her furniture by a bill of sale in payment of
meat furnished her by the defendant, she brought trover in the name of her
husband alleging that the goods were his as her husband ; W'ood v. Cohen, 6
Ind. 455 (1855) ; but see Harlan v. Brown, 4 Ind. App. 319 (1891) ; and Rich
v. Johnson, 61 Ind. 246 (1878), where it is said that one purchasing on credit
from an agent is bound to take notice that he has onlv authoritv to sell for
cash: Burcklwlter v. Mitchell, 27 S. Car. 240 (1887). In Barrett v. Warren,
3 Hill 348 (N. Y. 1842), it was said that a bona fide purchase or bailment
from one in apparently lawful possession is not a trespass, though trover or
replevin in the dctiuct would lie after demand and refusal : in Gillcit v. Rob-
erts. 57 N. Y. 28 (1874), it was held that trover did not lie until demand,
Tompkins v. Fonda Glove Co., 188 N. Y. 261 (1907), the mere purchase of the
goods, followed by taking possession, was held not to be a conversion, unless
the purchaser had sold, destroyed or consumed the goods. Pease v. Smith.
61 _N. Y. 477 (1875) ; see Bean v. Edge, 84 N. Y. 510 (1881). holding tha'
it is conversion for a landlord to seize and sell goods in his tenant's p'><;-
session under a conditional sale; nor is a bona fide transferee from a vendee
under a conditional sale sn protected unless he has parted with value, Dax^is
V. Bliss. 187 N. Y. 77 (1907).

The mere taking as a pledge is held to be a conversion, in McComhie v.
Daincs, 6 East 538: Hotchki.^s v. T^un.t. 49 Maine 213 (1860) : contra: St^ack-
vian V. Foster. L. R. 11 Q. R. 99 (1883). as to which see Clerk and Lindscll on
Torts, 2nd Ed.. 214: I.cuthold v. Fairchild. 2S Minn. 90 (1886): Varnrv v.
Curtis. 100 N. E. 650 (Mass. 1913), p. 654; and see Leonard v. Tidd. 3 Mete.
6 (Mass. 1841).



136 BISHOP AND JOURDAIN V. VISCOUNTESS MONTAGUE.

sion or not, for he might have had a replevin if he would ; and in
this action the trover is not traversable, but the conversion only
is material.

Heme e contra; because the property is gone by the taking, so
as he cannot dispose of them, 6 Hen. 7, and here the proper action
is trespass.

Warberton accord. ; for trespass and trover are contrary ac-
tions : for it cannot be, that he should have property and no property,
at one and the same time. And there is not here any word of the
writ true ; for he hath not any property at the time of the con-
version. 27 Ass, And of that opinion was Daniel.

But Anderson, Walmsley, and Kingsmil, e contra; and that he
had election to bring either of the actions at his pleasure. — Where-
fore it was adjudged for the plaintiff.^



^ On the first argument of this case the court was equally divided, Cro.
Eliz. 824 (1600). The opinion of Warberton represents the original state of
the authorities. In Bassctt v. Maynard, 1 Rolle Abridgment, 105 M, p. 5
(1601), it was held that "If I cut certain wood and a stranger take it out my
possession, ahhough I may have an action of trespass, still I may also have
an action on the case (i. e., trover) at my election." Ever since it has been no
bar to the action of trover that the goods were taken from the possession
of the plaintiff, Forsyth v. Wells, 41 Pa. 291 (1861); Clark v. Whitaker, 19
Conn. 319 (1848) ; Bruner v. Dyball, 42 111. 34 (1866) ; Western Union Tel. Co.
v. Franklin Construction Co., 70 N. H. 37 (1899); Moody v. Whitney, 34
Maine 563 (1852) ; Nelson v. Burt, 15 Mass. 204 (1818). So where trees or
crops are cut, or coal or other minerals are mined, the owner may waive the
trespass to his realty and sue in trover for trees, crops, etc., which, when
severed from the realtv by the defendant, became personaltv, Nelson v. Burt,
15 Mass. 204 (1818), Forsyth v. Wells, 41 Pa. 291 (1861), Moody v. Whitney,
34 Maine 563 (1852) ; Hunt v. City of Boston, 183 Mass. 303 (1903) ; Johnson
V. Walker, 23 Nebr. 736 (1888). In Sanderson v. Haverstick, 8 Pa. St. 294
(1848), the cutting of trees, though piled and allowed to remain on the own-
er's land was held to be conversion, and see Donaliue v. Shippee, 15 R. I. 453
(1887).

Trover lies against a thief for goods stolen by him, Hutchinson v. Mer-
chants and Mechanics Bank, 41 Pa. 42 (1861), though the action is suspended
until the criminal prosecution has been duly prosecuted and ended and the
statute of limitations does not run till termination of the criminal proceedings,
Hutchinson v. Merchants and Mechanics Bank, 41 Pa. 42 (1861), though the
action may be brought pending the prosecution, Keyser v. Rodgers, 50 Pa. 275
(1865).

Originally replevin was the exclusive remedy for a wrongful distress, and
though trespass early became concurrent with replevin in such case and
though, since the principal case and Bassett v. Maynard, 1 Rolle Abridgment.